Kalis v Kingborough Council

Case [2014] TASFC 2


[2014] TASFC 2

COURT:        SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:                 Kalis v Kingborough Council [2014] TASFC 2

PARTIES:  KALIS, Emmanuel
  v
  KINGBOROUGH COUNCIL

FILE NO:  1090/2013
JUDGMENT

APPEALED FROM:  Kingborough Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 60

DELIVERED ON:  14 April 2014
DELIVERED AT:  Hobart
HEARING DATE:  13 March 2014
JUDGMENT OF:  Blow CJ, Wood and Pearce JJ

CATCHWORDS:

Environment and Planning – Courts and tribunals with an environment jurisdiction – Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Summons for production of documents – Regulations requiring minutes of closed council meeting to be kept confidential.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s20(2).

Local Government (Meeting Procedures) Regulations 2005 (Tas), regs15(9), 34(3).

Rowell v Pratt [1938] AC 101; Allen & GDA Plumbing Pty Ltd v Townsley [1985] TASSC 69, B6/1985; Potts v Dennis Jones & Co Ltd (1995) 58 FCR 61, considered.

Aust Dig Environment and Planning [596]

Local Government – Regulation and administration – Meetings – Minutes – Closed meeting – Regulation requiring minutes to be kept confidential – Summons for production of minutes to Resource Management and Planning Appeal Tribunal.

Local Government (Meeting Procedures) Regulations 2005 (Tas), regs15(9), 34(3).
Rowell v Pratt [1938] AC 101; Allen & GDA Plumbing Pty Ltd v Townsley [1985] TASSC 69, B6/1985; Potts v Dennis Jones & Co Ltd (1995) 58 FCR 61, considered.
Aust Dig Local Government [69]

REPRESENTATION:

Counsel:
             Appellant:  A C R Spence
             Respondent:  M E O'Farrell SC and S Masters
Solicitors:
             Appellant:  Page Seager
             Respondent:  Simmons Wolfhagen

Judgment Number:  [2014] TASFC 2
Number of paragraphs:  41

Serial No 2/2014

File No 1090/2013

EMMANUEL KALIS v KINGBOROUGH COUNCIL

REASONS FOR JUDGMENT  FULL COURT

BLOW CJ
WOOD J
PEARCE J
14 April 2014

Orders of the Court

  1. Appeal allowed.

  1. Orders of primary judge set aside. 

  1. Originating application dismissed.

Serial No 2/2014
File No 1090/2013

EMMANUEL KALIS v KINGBOROUGH COUNCIL

REASONS FOR JUDGMENT  FULL COURT

BLOW CJ
WOOD J
PEARCE J
14 April 2014

  1. This appeal concerns a question whether the Resource Management and Planning Appeal Tribunal ("the Tribunal") was in error in determining it had power to issue a summons for the production to it of minutes of a closed meeting of a council.

  2. The appellant, Emmanuel Kalis, is a property developer. On 10 January 2011 the Kingborough Council ("the Council") refused his application for a permit to develop and use a shopping centre at 1734 Channel Highway in Margate.  Mr Kalis appealed the refusal to the Tribunal.  On 18 January 2012 the Tribunal upheld the appeal and directed that the application should be approved subject to conditions.  After a further hearing, the Tribunal directed the issue of a permit for the use and development with the conditions it determined would apply. 

  3. By letter dated 14 August 2012 Mr Kalis applied to the Tribunal for an order that the…

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AGLC
Kalis v Kingborough Council [2014] TASFC 2
Case
[2014] TASFC 2
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Kalis and the Kingborough Council regarding the production of documents. The matter came before the Full Court of the Supreme Court of Tasmania.

The central legal issue was whether the Resource Management and Planning Appeal Tribunal (the Tribunal) had the power to compel the production of minutes from a closed meeting of the Kingborough Council, notwithstanding regulations that required such minutes to be kept confidential.

The Full Court reasoned that the Tribunal's powers under the *Resource Management and Planning Appeals Act 1993* (Tas) were broad enough to permit the production of documents relevant to an appeal, even if those documents were otherwise confidential under council regulations. The Court held that the statutory power to require the production of documents for inspection and copying was not limited by the confidentiality provisions of the *Local Government (General) Regulations 2015* (Tas). The Court found that the primary judge had erred in concluding that the regulations prevented the Tribunal from accessing the confidential minutes.

Consequently, the Full Court allowed the appeal, set aside the orders of the primary judge, and dismissed the originating application.

Orders

Orders of the court

1. Appeal allowed.

2. Orders of primary judge set aside.

3. Originating application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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